Citation Nr: 0713389
Decision Date: 05/07/07 Archive Date: 05/17/07
DOCKET NO. 05-07 278 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to service connection for residuals of a
right knee injury including pain.
2. Entitlement to increased rating for chronic herniated
nucleus pulposus L5-S1 with right radiculopathy, currently
evaluated at 10 percent disabling.
3. Entitlement to a compensable rating for residuals of a
left knee injury.
4. Entitlement to an initial compensable rating for plantar
fascitis with calcaneal spurs and complaint of heel pain of
the right foot.
5. Entitlement to an initial compensable rating for plantar
fascitis with calcaneal spurs and complaint of heel pain of
the left foot.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A.M. Ivory, Associate Counsel
INTRODUCTION
The veteran evidently had active military service from August
1972 to May 1981, with verified service starting in November
1972, and had military service from October 1991 to November
2002.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2003 rating decision from
the Department of Veterans' Affairs (VA) Regional Office (RO)
in Reno, Nevada. That rating decision continued the
noncompensable rating for the service-connected chronic
herniated nucleus pulposus L5-S1 with right radicuoplathy and
the noncompensable rating for the service-connected residuals
of the left knee injury. That rating decision also granted
an initial rating for service-connected plantar fascitis with
calcaneal spurs and complaint of heel pain of the right foot
and an initial rating for service-connected plantar fascitis
with calcaneal spurs and complaint of heel pain of the left
foot.
A December 2004 rating decision granted a 10 percent rating
for the service-connected chronic herniated nucleus pulposus
L5-S1 with right radicuoplathy. Inasmuch as a rating higher
than 10 percent for chronic herniated nucleus pulposus L5-S1
with right radicuolpathy is available, and as a claimant is
presumed to be maximum available benefit for a given
disability, the claim for an evaluation in excess of 10
percent for chronic herniated nucleus pulposus L5-S1 with
right radicuolpathy, remains viable on appeal. See AB v.
Brown, 6 Vet. App. 35, 38 (1993).
As the claim for plantar fascitis with calcaneal spurs and
complaint of heel pain in the right and left feet on appeal
involve requests for higher initial ratings following the
grant of service connection, the Board has characterized
those issues in light of the distinction noted in Fenderson
v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an
initial rating claim from a claim for an increased rating for
disability already service-connected).
The veteran testified before the undersigned at a hearing at
the RO in May 2005. At that time, he testified that he could
not work due to his service-connected disabilities, thus
implicitly raising a claim for a total rating based on
individual unemployability due to service connected
disabilities (TDIU). As the RO has not yet considered the
veteran's claim for a TDIU, the Board refers it to the RO for
appropriate development and action.
The issues of entitlement to service connection for the
residuals of a right knee injury with pain and increased
ratings for chronic herniated nucleus pulposus L5-S1 with
right radiculopathy, and plantar fascitis with calcaneal
spurs and complaint of heel pain of the right and left feet
are addressed in the REMAND portion of this document and are
being remanded to the RO via the AMC in Washington, DC. VA
will advise the veteran when further action on his part is
required.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the issue here in decided has been accomplished.
2. The objective and competent medical evidence of record
demonstrates that the veteran's service-connected residuals
of a left knee injury are not shown to have even slight
recurrent subluxation or lateral instability.
3. The veteran's x-rays show that he has osteoarthritis in
his left knee shown to be productive of painful motion.
CONCLUSIONS OF LAW
1. The schedular criteria for a compensable rating for the
service-connected residuals of a left knee injury are not
met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 &
Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic
Code (DC) 5257 (2006).
3. The criteria for an additional, separate, 10 percent
evaluation for left knee arthritis have been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§
4.1, 4.2, 4.7, 4.71a, DC 5003, 5010, 5260, 5261 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2006), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 &
Supp. 2006). To implement the provisions of the law, VA
promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2006).
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b).
In addition, they define the obligation of VA with respect to
its duty to assist a claimant in obtaining evidence. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the duties imposed by VCAA and its implementing
regulations, the Board finds that all notification and
development action needed to fairly adjudicate the claims on
appeal has been accomplished.
In June 2003, prior to the rating decision on appeal, the RO
sent the veteran a letter advising him that in order to
support a claim for higher evaluation for a service-connected
disability, the evidence must show that the disability had
become worse; the veteran had an opportunity to respond prior
to the issuance of the August 2003 rating decision.
The Board accordingly finds that the veteran has received
sufficient notice of the information and evidence needed to
support his claim for increased rating and has been afforded
ample opportunity to submit such information and evidence.
The Board also finds that the June 2003 letter, and a March
2005 letter regarding other claims, together satisfy the
statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained that the
claimant, and what evidence, if any, will be obtained by VA.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)).
The June 2003 and March 2005 letters advised the veteran that
VA is responsible for getting relevant records from any
Federal Agency including medical records from the military,
VA hospitals (including private facilities where VA
authorized treatment), or from the Social Security
Administration. The letters also advised the veteran that VA
must make reasonable efforts to help the veteran get relevant
records not held by any Federal agency, including State or
local governments, private doctors and hospitals, or current
or former employers.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
proper VCAA notice should notify the veteran of: (1) the
evidence that is needed to substantiate the claim(s); (2) the
evidence, if any, to be obtained by VA; (3) the evidence, if
any, to be provided by the claimant; and (4) a request by VA
that the claimant provide any evidence in the claimant 's
possession that pertains to the claim(s). As explained
hereinabove, the first three content-of-notice requirements
have been met in this appeal.
The Board notes that the record does not show that the
veteran was advised of the fourth content-of-notice
requirement under Pelegrini (request that the claimant
provide any evidence in his possession that pertains to the
claim). However, even though the veteran was not expressly
advised to "give us all you've got" the Board finds that
this requirement has been constructively satisfied.
As noted, the veteran has been advised of the evidence
required to support his claims and of the evidence of record.
The Board finds that he has accordingly been constructively
invited to give VA all the relevant evidence in his
possession not already of record at VA.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) (West 2002 & Supp. 2006), requires that notice to a
claimant pursuant to VCAA be provided "at the time" that,
or "immediately after," the Secretary receives a complete
or substantially complete application for VA-administered
benefits. In that case, the Court determined that VA had
failed to demonstrate that a lack of such pre-adjudication
notice was not prejudicial to the claimant.
As indicated, in the matters now before the Board, documents
fully meeting the VCAA's notice requirements were provided to
the veteran after the rating action on appeal. However, the
Board finds that the lack of full pre-adjudication notice in
this appeal has not, in any way, prejudiced the veteran.
The Board notes that the Court has held that an error in the
adjudicative process is not prejudicial unless it "affects a
substantial right so as to injure an interest that the
statutory or regulatory provision involved was designed to
protect such that the error affects 'the essential fairness
of the [adjudication].'" Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), aff'd, 20 Vet.
App. 537 (2006).
The Board finds that, in this appeal, the delay in issuing
section 5103(a) notice was not prejudicial to the veteran
because it did not affect the essential fairness of the
adjudication, in that his claim was fully developed and
readjudicated after notice was provided.
As indicated, the RO gave the veteran notice of what was
required to substantiate the claim on appeal, and the veteran
was afforded ample opportunity to submit such information
and/or evidence.
Following the issuance of the March 2005 letter, which
completed VA's notice requirements, the veteran was afforded
an opportunity to present information and/or evidence
pertinent to the appeal.
Neither in response to the documents cited above, nor at any
other point during the pendency of this appeal, has the
veteran or his representative informed the RO of the
existence of any evidence-in addition to that noted below-
that needs to be obtained prior to appellate review.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claim is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102 (2006).
More recently, the Board notes that, on March 3, 2006, during
the pendency of this appeal, the Court issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), which held that in rating cases, a
claimant must be informed of the rating formulae for all
possible schedular ratings for an applicable rating criteria.
As regards the claim for increase on appeal, the Board finds
that this was accomplished in the January 2005 statement of
the case which suffices for Dingess.
Dingess also held that VA notice must include information
regarding the effective date that may be assigned, this was
not expressly but the Board finds that there is no
possibility of prejudice under the notice requirements of
Dingess since there is no dispute as to effective date.
The Board also notes that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the veteran in connection with the claim on appeal.
The veteran's service medical records and post-service VA
medical records are associated with the claims file. Neither
the veteran nor his representative has identified, and the
file does not otherwise indicate, that there are any other VA
or non-VA medical providers having existing records that
should be obtained before the claims are adjudicated. The
veteran was afforded a VA medical examination in August 2003
for his left knee and testified during a hearing before the
Board in May 2005.
Under these circumstances, the Board finds that the veteran
is not prejudiced by the Board proceeding, at this juncture,
with an appellate decision on the claim for increased rating
for the service-connected residuals of a left knee injury.
II. Factual Background and Legal Analysis
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which assigns ratings
based on average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding
the degree of disability is resolved in favor of the veteran.
See 38 C.F.R. §§ 3.102, 4.3 (2006).
The veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Where entitlement to compensation already has been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
The veteran is currently assigned a noncompensable rating for
his service-connected residuals of a left knee injury under
DC 5257.
Diagnostic Code 5257 allows for the assignment of ratings
based on recurrent subluxation or lateral instability of the
knee. Under Diagnostic Code 5257, a 10 percent evaluation is
assigned for slight recurrent subluxation or lateral
instability, a 20 percent evaluation is assigned for moderate
impairment of subluxation or lateral instability, and a 30
percent evaluation is assigned for severe subluxation or
lateral instability.
Limitation of motion of the knee is addressed in 38 C.F.R. §
4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260
provides for a zero percent rating where flexion of the leg
is limited to 60 degrees; 10 percent rating where flexion is
limited to 45 degrees; 20 percent rating where flexion is
limited to 30 degrees; and 30 percent rating where flexion is
limited to 15 degrees. Diagnostic Code 5261 provides for a
zero percent rating where extension of the leg is limited to
5 degrees; 10 percent rating where extension is limited to 10
degrees; 20 percent rating where extension is limited to 15
degrees; a 30 percent rating where extension is limited to 20
degrees; a 40 percent rating where extension is limited to 30
degrees; and a 50 percent rating where extension is limited
to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260,
5261.
The knee is considered a major joint. 38 C.F.R. § 4.45(f).
The normal range of motion of the knee is from zero to 140
degrees. 38 C.F.R. § 4.71, Plate II (2006).
Disability of the musculoskeletal system is the inability to
perform normal working movement with normal excursion,
strength, speed, coordination, and endurance. Weakness is as
important as limitation of motion, and a part which becomes
disabled on use must be regarded as seriously disabled.
Functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
claimant undertaking the motion. Weakness is to be
considered in evaluating the degree of disability, but a
little-used part of the musculoskeletal system may be
expected to show evidence of disuse, through atrophy, the
condition of the skin, absence of normal callosity, or the
like. 38 C.F.R. § 4.40.
The provisions of 38 C.F.R. § 4.45 contemplate inquiry into
whether there is crepitation, limitation of motion, weakness,
excess fatigability, incoordination, impaired ability to
execute skilled movements smoothly, pain on movement,
swelling, deformity, or atrophy of disuse. Instability of
station, disturbance of locomotion, and interference with
sitting, standing, and weight-bearing are also related
considerations.
With any form of arthritis, painful motion is an important
factor of disability, the facial expression, wincing, etc.,
on pressure or manipulation, should be carefully noted and
definitely related to affected joints. Muscle spasm will
greatly assist the identification. The intent of the
schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is
the intention to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimum compensable rating for the joint.
Crepitation either in the soft tissues such as the tendons or
ligaments, or crepitation within the joint structures should
be noted carefully as points of contact which are diseased.
Flexion elicits such manifestations. The joints involved
should be tested for pain on both active and passive motion,
in weight-bearing and, if possible, with the range of the
opposite undamaged joint. 38 C.F.R. § 4.59.
The Board recognizes that the Court, in DeLuca v. Brown, 8
Vet. App. 202 (1995) held that, where evaluation is based
upon limitation of motion, the question of whether pain and
functional loss are additionally disabling must be
considered. 38 C.F.R. §§ 4.40, 4.45. The provisions
contemplate inquiry into whether there is crepitation,
limitation of motion, weakness, excess fatigability,
incoordination, and/or impaired ability to execute skilled
movement smoothly, and pain on movement, swelling, deformity,
or atrophy of disuse. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight-bearing are also related considerations. Within this
context, a finding of functional loss due to pain must be
supported by adequate pathology and evidenced by the visible
behavior of the claimant. Johnston v. Brown, 10 Vet. App.
80, 85 (1997).
The Board notes, however, that the Court has held that
section 4.40 does not require a separate rating for pain but
rather provides guidance for determining ratings under other
diagnostic codes assessing musculoskeletal function. See
Spurgeon v. Brown, 10 Vet. App. 194 (1997).
VA's General Counsel has held that a claimant who has
arthritis and instability of the knee may be rated separately
under diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62
Fed. Reg. 63,604 (1997). The General Counsel subsequently
clarified that for a knee disability rated under DC 5257 to
warrant a separate rating for arthritis based on X-ray
findings and limitation of motion, limitation of motion under
DC 5260 or DC 5261 need not be compensable but must at least
meet the criteria for a zero-percent rating. A separate
rating for arthritis could also be based on X-ray findings
and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98
(1998); 63 Fed. Reg. 56,704 (1998).
More recently, the General Counsel held that separate rating
could also be provided for limitation of knee extension and
flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).
The RO received the veteran's current claim for an increased
rating for his service-connected left knee disability in
March 2003.
The veteran had a VA medical examination in August 2003. At
that time, he reported chronic left interior patella pain
that began during basic training in 1972. The veteran
reported moderate to severe daily flare-ups that lasted an
hour, and rated his pain as 4 to7 out of 10. Bending the
knee caused pain that was alleviated with rest. He denied
using crutches, or a brace, cane, or other corrective device.
He had no episodes of dislocation or recurrent subluxation.
His only symptom was pain. The VA examiner said there was no
weakness, stiffness, swelling, heat, redness, instability,
locking, fatigability, or lack of endurance.
Objectively, the joint was not painful on motion and the
examiner estimated that with a flare-up, the veteran would
have 5 percent due to continuous jogging that would be
characterized by pain and fatigue. Range of motion of the
right and left knees was flexion from 0 degrees to 135
degrees and bilateral extension was to 0 degrees. There was
no objective evidence of painful motion, edema, effusion,
instability, weakness, tenderness, heat, abnormal movement or
guarding of movement. The VA physician noted that the
veteran's bilateral knee x-rays had three views that were
unremarkable and that there was a normal appearance of both
knees with no bone, joint or soft tissue abnormalities. The
diagnosis was status post left knee sprain with residual
pain.
In March 2005, the veteran was seen at the VA Medical Center,
in pertinent part, for a follow-up of bilateral knee x-ray
studies that showed mild degenerative disease and mild joint
space narrowing with mild osteoporosis. Examination of the
veteran's knees revealed medial compartment tenderness in
both knees. There was no effusion although that developed
after significant exercise. New pain medication was
prescribed and the veteran was advised that, if it failed, he
could consider intraarticular steroid injections.
During his May 2005 Board hearing, the veteran testified to
having knee pain that was no longer helped with prescribed
medication. He said walking caused pain and swelling. He
used a knee brace.
Upon review of the probative and competent medical evidence
of record, the Board is of the opinion that a compensable
evaluation is not warranted for the veteran's service-
connected left knee disability as the medical records show
that he does not have even slight recurrent subluxation
needed to warrant the higher 10 percent disability rating.
Based upon the record before the Board, there is essentially
no objective evidence of any left knee pathology. Moreover,
the left knee disorder has not been shown to hinder the
veteran's range of motion or ability to perform such tasks as
walking or standing more than slightly. Thus, the veteran's
complaints of pain and instability cannot justify a
compensable rating for the left knee disability. 38 C.F.R. §
4.71a, DC 5257. Such a finding corresponds to the currently
assigned noncompensable rating under DC 5257.
The Board notes that VA must consider "functional loss" of
a musculoskeletal disability separately from consideration
under the Diagnostic Codes; "functional loss" may occur as
a result of weakness or pain on motion. See 38 C.F.R. §§
4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
VA must consider the effect of pain and weakness when rating
a service-connected disability on the basis of limitation of
range of motion. Id. Even with consideration of any
functional loss attributable to the left knee disability, a
compensable evaluation is not warranted under any of the
applicable DCs for rating knee disabilities.
Thus, the competent and objective medical evidence of record
preponderates against a finding that a compensable evaluation
is warranted for the service-connected left knee disability.
See 38 U.S.C.A. § 5107.
Separate rating for arthritis
However, the Board's analysis does not end here. The
veteran's left knee symptomatology also includes X-ray
evidence of arthritis, and clinical evidence of some
limitation of motion. A claimant who has arthritis and
instability of the knee may be rated separately under DC 5003
and DC 5257, based upon additional disability. See
VAOPGCPREC 9-98; VAOPGCPREC 23- 97. In Hicks v. Brown, 8
Vet. App. 417 (1995), the Court noted that DC 5003 and 38
C.F.R. § 4.59 deem painful motion of a major joint or group
of minor joints caused by degenerative arthritis that is
established by X-ray evidence to be limited motion even
though a range of motion may be possible beyond the point
when pain sets in. Pursuant to Diagnostic Code 5003,
degenerative arthritis, established by X-ray findings, will
be rated on the basis of limitation of motion under the
appropriate diagnostic code for the specific joint or joints
involved. When the limitation of motion of the specific
joint involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by limitation of motion, to be combined, not added, under DC
5003.
Here, the reported motion of the left knee in flexion has
been from 0 to 135 degrees, on recent VA examination. As
noted, normal range of flexion of the knee is to 140 degrees.
See 38 C.F.R. § 4.71, Plate II. Thus, the veteran has some
limitation of motion of the left knee, albeit, slight. The
limitation of flexion, however, is not compensable. 38
C.F.R. § 4.71a, DC 5260. Also, there is no indication of
limitation of extension, so as to render it compensable on
that basis, under DC 5261. Accordingly, under Diagnostic
Code 5003, the arthritis and limitation of motion of the left
knee warrant a separate 10 percent rating, but no higher,
since he filed his claim in March 2003.
ORDER
A compensable rating for residuals of a left knee injury is
denied.
A separate 10 percent disability rating is granted for
arthritis of the left knee, subject to the law and
regulations governing the payment of monetary benefits.
REMAND
The veteran contends in essence that his service-connected
chronic herniated nucleus pulposus L5-S1 with right
radiculopathy and service-connected plantar fascitis with
calcaneal spurs and complaint of heel pain of the right and
left feet are more disabling than currently evaluated.
The Court addressed VA's duty to assist an increased rating
claim in the case of Snuffer v. Gober, 10 Vet. App. 400
(1997). In Snuffer, a veteran claimed an increased rating
for a disability and was examined for such a disability by
VA. Subsequently while the claim was pending, the veteran
asserted that the disability had worsened. The Board in
denying her claim relied on the VA examination of record.
The Court vacated the Board decision and remanded the claim
for a new examination, finding that where a veteran complains
of increase in disability two years after the last
examination, VA's duty to assist required a new examination
to determine the current severity of the disability.
In the present case, the veteran testified during his Board
hearing in May 2005 that his service-connected chronic
herniated nucleus pulposus L5-S1 with right radiculopathy had
worsened since his last VA medical examination in August
2003.
As well, the Board notes that the veteran was not afforded a
VA medical examination to evaluate the severity of his
service-connected plantar fascitis with calcaneal spurs and
complaint of heel pain of the left and right feet.
Thus, in the interest of fairness and due process, the Board
finds that the veteran should be afforded a new VA
examination to more accurately access the current severity of
his service-connected chronic herniated nucleus pulposus L5-
S1 with right radiculopathy and his service-connected plantar
fascitis with calcaneal spurs and complaint of heel pain of
the right and left feet.
The veteran also asserted at his Board hearing that he has a
right knee disability that is due to his second period of
active military service, from October 1991 to November 2002.
A VA medical examination report in May 1987 stated that the
veteran had right knee pain, although a right knee disorder
was not diagnosed at that time. Service medical records
dated in July 2001 show that he complained of bilateral knee
pain, right greater than left, while in service, and patella
tendonitis, right worse than left, was diagnosed. Further,
the veteran's March 2005 knee x-rays show that he has
osteoarthritis. Therefore, the veteran should be afforded a
VA medical examination in order to determine the etiology and
current severity of the veteran's right knee injury.
The Board notes that a veteran is presumed in sound condition
except for defects noted when examined and accepted for
service. Clear and unmistakable evidence that the disability
existed prior to service and was not aggravated by service
will rebut the presumption of soundness. 38 U.S.C.A. § 1111
(West 2002); VAOPGCPREC 3-2003. A pre-existing disease will
be considered to have been aggravated by active service where
there is an increase in disability during service, unless
there is a specific finding that the increase in disability
is due to the natural progression of the disease. 38
U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2006).
In VAOGCPREC 3-2003, the VA's General Counsel determined that
the presumption of soundness is rebutted only where clear and
unmistakable evidence shows that the condition existed prior
to service and that it was not aggravated by service. The
General Counsel concluded that 38 U.S.C.A. § 1111 requires VA
to bear the burden of showing the absence of aggravation in
order to rebut the presumption of sound condition. See also
Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant
v. Principi, 17 Vet. App. 116, 123-30 (2003).
In this case, the RO has not determined whether there is
clear and unmistakable evidence that any currently diagnosed
right knee disorder preexisted the appellant's entry into
active military service in August 1972 (or October 1991) and
was not aggravated by service.
Accordingly, this matter is REMANDED to the RO/AMC for the
following actions:
1. The RO/AMC should send the
veteran appropriate notice under
38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2006) and 38 C.F.R. § 3.159(b)
(2006), that includes an explanation
as to the information or evidence
needed to establish an effective
date and disability rating for the
claims on appeal, as outlined by the
Court in Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. The RO/AMC should obtain all VA
medical records regarding the
veteran's treatment from May 2005 to
the present.
3. Then, the veteran should be
scheduled for appropriate VA
examination(s) e.g., orthopedic,
neurologic (preferably performed by
physicians, if available) who have
not previously examined the veteran,
to determine the etiology of any
right knee disorder found to be
present and the current severity of
the veteran's service-connected
chronic herniated nucleus pulposus
at L5-S1 with right radiculopathy
and plantar fascitis with calcaneal
spurs and complaint of heel pain of
the right and left feet. Prior to
the examination(s), the examiner(s)
should review the claims folders,
including the veteran's service
medical records. All indicated
tests and studies should be
performed and all clinical findings
reported in detail. The examiner(s)
is(are) requested to address the
following matters:
A. Right Knee Disorder:
1) A complete history of
the claimed disorder
should be obtained from
the veteran, including any
pre-service and post
service (intercurrent)
knee injury(ies) that
occurred. Prior to the
examination, the examiner
should review the claims
folders, including the May
1987 VA examination report
and the appellant's
service medical records
for each of his two
periods of active duty
(from August 1972 to May
1981 and from October 1991
to November 2002),
including the July 2001
service medical record.
2) Does the veteran
currently have a disorder
manifested by right knee
pain or other chronic
right knee
disability(ies)?
3) If he has such a
disability (or
disabilities), does it
represent a disease
process or the residuals
of an injury?
4) Taking into
consideration the evidence
incorporated in the
service medical records
and post-service medical
records, including the May
1987 VA examination
report, July 2001 service
medical record, and the
March 2005 VA x-ray
report, when was the right
knee disability incurred?
5) If any disability was
incurred before August
1972 or before October
1991, was there a
permanent increase in
disability, beyond the
natural progress of this
disorder, during a period
of military duty, namely
from August 1972 to May
1981 or from October 1991
to November 2002?
6) If any diagnosed
disability was incurred
after August 1972, or
after October 1991, the
examiner is requested to
provide an opinion
concerning the etiology of
any right knee disorder
found to be present, to
include whether it is at
least as likely as (i.e.,
to at least a 50-50 degree
of probability) that any
currently diagnosed right
knee disorder was caused
by military service, or
whether such an etiology
or relationship is
unlikely (i.e., less than
a 50-50 probability).
NOTE: The term "at
least as likely as
not" does not mean
merely within the
realm of medical
possibility, but
rather that the
weight of medical
evidence both for and
against a conclusion
is so evenly divided
that it is as
medically sound to
find in favor of
causation as it is to
find against it.
B. Chronic Herniated Nucleus
Pulposus L5-S1 with Right
Radiculopathy and Right and
Left Foot Plantar Fascitis.
1) The examiner(s) should
describe all
symptomatology due to the
veteran's service-
connected lumbar spine and
plantar fascitis
disabilities and, to the
extent possible,
distinguish the
manifestations of the
service- connected back
and foot disabilities from
those of any other non-
service-connected
disorder(s) present. Any
indicated studies,
including X-ray studies
and range of motion
testing in degrees, should
be performed.
2) The examiner(s) should
indicate whether the
veteran has moderate,
moderately severe, or
severe, plantar fascitis.
3) In reporting the
results of range of motion
testing of the feet and
lumbar spine, the examiner
should specifically
identify any excursion of
motion accompanied by
pain. The physician(s)
should be requested to
identify any objective
evidence of pain and to
assess the extent of any
pain for the service-
connected lumbar spine and
plantar fascitis
disabilities.
4) Tests of joint motion
against varying resistance
should be performed. The
extent of any
incoordination, weakened
movement and excess
fatigability on use should
be described. To the
extent possible the
functional impairment due
to incoordination,
weakened movement and
excess fatigability should
be assessed in terms of
additional degrees of
limitation of motion. If
this is not feasible, the
examiner(s) should so
state.
5) The examiner(s) should
also express an opinion
concerning whether there
would be additional limits
on functional ability on
repeated use or during
flare-ups (if the veteran
describes flare-ups), and,
if feasible, express this
in terms of additional
degrees of limitation of
motion on repeated use or
during flare-ups. If this
is not feasible, the
examiner should so state.
6) With respect to the
veteran's lumbar spine
disability, the
examiner(s) should
specifically address
whether there is muscle
spasm on extreme forward
bending; loss of lateral
spine motion, unilateral,
in a standing position;
listing of the whole spine
to the opposite side;
positive Goldthwaite's
sign; or abnormal mobility
on forced motion.
The examiner(s) should
also specifically identify
any evidence of neuropathy
to include reflex changes,
characteristic pain, and
muscle spasm. Any
functional impairment of
the lower extremities due
to the veteran's service-
connected back disability
should be identified, and
the examiner should assess
the frequency and duration
of any episodes of
intervertebral disc
syndrome disability, and
in particular should
assess the frequency and
duration of any episodes
of acute signs and
symptoms of intervertebral
disc syndrome that require
bed rest prescribed by a
physician and treatment by
a physician.
7) The examiner(s) should
also provide an opinion
concerning the impact of
the veteran's service-
connected lumbar spine and
right and left foot
plantar fascitis
disabilities on his
ability to work.
A complete rationale
should be provided for all
opinions expressed. The
veteran's claims files
should be made available
to the examiner(s) prior
to examination and the
examination report(s)
should indicate if the
veteran's medical records
were reviewed by the
examiner(s).
5. Thereafter, the RO should
readjudicate the veteran's claims
for service connection for a right
knee disorder, and increased ratings
for his service-connected chronic
herniated nucleus pulposus L5-S1
with right radiculopathy, and
plantar fascitis with calcaneal
spurs and complaint of heel pain of
the right and left feet. If the
benefits sought on appeal remain
denied, the veteran and his
representative should be provided
with a supplemental statement of the
case (SSOC). The SSOC should
contain notice of all relevant
actions taken on the claim, to
include a summary of the evidence
and applicable law and regulations
considered pertinent to the issues
currently on appeal since the May
2005 SSOC. An appropriate period of
time should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
(CONTINUED ON NEXT PAGE)
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
D.J. DRUCKER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs